Confidentiality and Data Protection Post Naomi Campbell: A Step Back From The Brink

Article by Julian Pike, Henry Sainty, Benjamin Beabey

Recently, the Court of Appeal handed down a vitally important judgment¹ for the media following the appeal by MGN Limited, publishers of The Mirror, against Mr Justice Morland's decision that the paper had breached Naomi Campbell's confidentiality/privacy and her rights under the Data Protection Act 1998 ("the Act"). The potential impact of Morland J's decision was discussed in an earlier paper² produced by this firm in May of this year. The effect of the Court of Appeal's decision is to have turned back a tide that threatened to engulf the media, particularly in relation to Data Protection.

MGN appealed on liability in respect of both causes of action and the award of additional damages. The essential facts of the case were that Miss Campbell was an international model who courted publicity rather than shunned it; she had gone out of her way to claim that, unlike many models, she did not take drugs - on one occasion when she entered a clinic she claimed to have done so to receive treatment for behaviour and anger management when in fact she had been there for drug abuse; The Mirror disclosed on its front page that she was receiving therapy with Narcotics Anonymous (NA), the story illustrated with photographs of her on the pavement outside the NA meeting place.

It was conceded from the outset that the paper was entitled to publish the fact that she was a drug addict and that she was receiving treatment for her addiction³. Her complaint was limited to "that by obtaining and publishing information relating to the receipt by [Miss Campbell] of treatment of her drug problem at Narcotics Anonymous [MGN] acted in breach of confidence". This important concession was made because Miss Campbell had 'mendaciously' asserted that she did not take drugs and it was legitimate for the media to correct that public statement. It was also conceded by Miss Campbell that her claim was not one brought under a free standing right to privacy - a claim not recognised by English law - but one that fell within the ambit of the law of confidence.

Two principal arguments were advanced by MGN in its appeal against the breach of confidence finding:

• The material the subject of complaint was too insignificant to attract the law of confidentiality, made more so by the fact that certain details were incorrect; and
• The Mirror's right in the public interest to publish the fact of Miss Campbell's addiction and her receiving treatment extended to include the right to publish details in relation to that treatment.

The Court of Appeal followed Morland J's approval of the test of confidentiality laid down in Lenah⁴, namely:

but found that the additional information published about Miss Campbell's treatment was not confidential. The Master of the Rolls, giving the Court's judgment, held that since it was legitimate for The Mirror to publish the fact of the addiction and that she was receiving treatment, it was not particularly significant that reference was made to the treatment consisted of attending NA. The fact that Miss Campbell could not claim anonymity there was significant. The Court also dismissed the notion that a person of ordinary sensibilities would conclude that the disclosure of her attending NA was 'highly offensive' or even offensive given what had been conceded as rightly publishable. The covert photographs that might have been thought to be offensive were not the subject of particular complaint. In short, details of Miss Campbell's attendance at NA was 'insignificant' compared with the central fact that she was receiving treatment for drug addiction, distinguishing in the process Miss Campbell's attendance at NA from disclosure of clinical details.

As for the public interest in publishing the peripheral details surrounding her drug addiction and treatment, the Court regarded the thought that a story of her addiction and treatment would be "absurd" without the supporting background information. It believed that the background details were "if not … essential, [they were] part of the journalistic package designed to demonstrate … Miss Campbell had been deceiving the public…" If the information was in the public interest then the journalist had to be given reasonable latitude as to how the information was conveyed to the public.

The following points flow from the judgment on confidentiality:

• Although the point was conceded by Miss Campbell, it is a further case in support of the now clearly established position that the right to privacy is not free standing and must be brought under the law of confidence;
• The Court will be reluctant to create an artificial distinction between information that is in the public interest to be published and a story's mere detail;
• Following Flitcroft⁵ it is a further endorsement of the Lenah approach to confidentiality where there is not a confidential relationship between the parties. This suggests that the Court is prepared to tread in the area of taste whereas before it sought to abstain, thus blurring the edges of the media's entitlement to decide how it wishes to run the story;
• The decision is to be tempered by the clear statement that simply because a person has been adopted as a role model, without seeking that position, it does not mean that publication of otherwise private/confidential information is necessarily in the public interest. Public figures retain an entitlement to a private life which cannot be laid bare simply because they are public figures. This will create difficult judgment calls for the media when formulating a public interest to justify publication.

While the Court of Appeal's decision on confidentiality is important, of greater significance is its judgment relating to data protection. The Judge at first instance found, in summary⁶, that:

• the processing by MGN was not 'fair' because the photographs had been obtained covertly;
• the processing was unlawful since it was in breach of confidentiality;
• none of the conditions in Schedule 2 to the Act were satisfied;
• the information was sensitive personal data and MGN failed to satisfy any of the conditions in Schedule 3; and
• whilst Section 32 of the Act provided journalists with protection prior to publication, it did not grant them protection from claims for compensation once publication had taken place.

Miss Campbell's complaint before Morland J was that her rights under the Act had been breached by publication of the articles. Before the Judge, MGN had accepted that the steps taken in publishing amounted to 'processing' within the Act. It had argued that (a) the publications fell within s.32 and (b) in any event, the publications satisfied the fair processing principle. Before the Court of Appeal, MGN's position changed. It withdrew the concession that publication of the paper amounted to 'processing' and argued in the alternative that (i) the publications fell outside the Act altogether or (ii) the articles fell within s.32. It was argued by MGN that if the judgment was upheld, without the prior consent of the data subject, it would be a rare occasion when the media could publish personal data, sensitive or not, without breaching the Act. As such it would be virtually impossible for journalists to comply with the Act.

In considering MGN's new arguments, the Court of Appeal considered three questions:

• Does the Act apply to publication of newspapers and other hard copies containing information that has been subjected to data processing?
• Does the s.32 exemption only apply up to the moment of publication?
• Does the s.32 exemption apply to publication, insofar as this falls within the scope of the Act?

The Master of the Rolls, in considering this question, cited recitals 10 and 27 and Articles 2 and 3 from the EC Directive 95/46 from which the Act is derived. He was of the view that the Court had to adopt a purposive approach in interpreting the Directive so as to read the Act in a "sensible manner". It was noted that the language used was that of 'disclosure of information or data by transmission, dissemination or otherwise making available' which ordinarily would encompass publication of hard copies. In identifying that both the Directive and the Act defined processing as 'any operation or set of operations', the Court concluded that if an activity is carried out by or at the behest of an Editor, for present purposes the data controller under the Act, and the activity is linked to automated processing of data, then the publication of an article is part of that operation or set of operations. The Act could, and did, in the present circumstances apply to publication of hard copies.

By way of a reminder, s.32 of the Act provides that processing personal data is substantially exempt under the Act if:

In considering these three sub-sections, the Court of Appeal was of the view that they provided a widespread exemption from compliance with obligations under the Act subject only to (i) the publication being in the public interest and (ii) the fact that compliance with the relevant provisions would be incompatible with the special purpose, in this case journalism. A purposive approach should be adopted. The Court regarded it as "illogical" for a paper to be exempt prior to publication under s.32, but exposed to a claim once the story had been published. Such an approach would restrict press freedom and allow for a "string of claims".

It was argued on behalf of Miss Campbell that because s.32(1) depended on the processing being undertaken with a view to publication it could be said that processing could not include publication itself. The Court considered this suggestion an 'absurdity'. It found that the Act applies to data which if exempt prior to publication by virtue of s.32 remains subject to the exemption thereafter.

On the facts of the Campbell case, the Court held that ss.32(1)(a) was plainly met. The Court also accepted that ss.32(1)(b) was also satisfied. As for ss.32(1)(c), the only condition of relevance was whether Miss Campbell's consent had been obtained. Before publication Miss Campbell's agent had refused to give her client's consent and therefore the Court found that the public interest justified the publication without Miss Campbell's consent. Furthermore, having regard to the speed of activity inherent in publishing a newspaper, the Court of Appeal rejected the suggestion that The Mirror could have complied with the data protection principles in the midst of putting together its story of Miss Campbell's addiction and treatment.

• Although The Mirror succeeded, it must not be overlooked that the Act does apply to the media.
• In order to be exempt from significant elements of the Act the media will need to comply with s.32. Editors and legal advisers will have to give consideration to the terms of s.32 with a checklist that should include the following:

Does the publication comply with the relevant code of practice(s)?;

Has the data subject consented to the publication?;

• The reality is that the s.32 exemption remains a relatively high threshold to meet, albeit the media has in recent years come to terms with the need to demonstrate the public interest in a story. However, there will be many occasions when it may not be possible to rely on the exemption. In a privacy-styled complaint, if a media organisation can demonstrate a public interest defence in confidence, it must be more likely than not that it will also succeed under the Act.
• Considering a 'cumbersome and inelegant' Act in the heat of the moment will remain a practical problem for editors and lawyers alike.
• If the Court of Appeal is correct, the likelihood of the media, in the absence of satisfying s.32, meeting the requirements of Schedule 2 may be slim and even more so in the case of Schedule 3, its statutory instrument⁷ and sensitive personal data.
• Many media organisations hold data banks of cuttings, not necessarily with a view to publication. It remains open to potential complaints to seek the disclosure of information held and/or for data banks to be amended or marked where inaccurate and/or defamatory material is held.
• Publication on websites will be subject to the Act and, as with hard copy publication, the s.32 exemption will have to be met to avoid liability.

The sigh of relief from the media has been almost audible. A reversal would have left it little option but to lobby the Government for an immediate amendment to the Act. Swathes of what we currently see in newspapers and other media could not have been published in the future, had MGN not succeeded, without the overwhelming threat of disclosure requests for information held by journalists post publication and claims for infringement of the Act. The immediate threat has receded, but the Act remains a new and potentially damaging menace to the media⁸. It has not gone away with the Campbell decision, even if leave to appeal to the House of Lords was turned down by the Court of Appeal.

If Miss Campbell has the stomach for round 3, there remains scope for her to argue that the Court of Appeal's policy-driven interpretation of the Act should not stand. In particular, in light of the Court's decision on s.32, clarifying the purpose of Schedules 2 and 3 and SI 2000/417, giving the media some protection is something that the House of Lords may be persuaded to consider. For example, how is paragraph 6 of Schedule 2 to be interpreted in light of this judgment?

That said, privacy was seen by many as the new libel. The combination of this judgment, the cost implications for Miss Campbell and the low level of damages awarded by the trial judge (notwithstanding the particular facts of this case) makes it more likely that similar future claims may still represent an unattractive gamble, even if damages are likely to be higher. Not all potential claimants will be put off, but some will at least think twice.